A Vast Range of Skills and Experience
The team members at John Farage O'Brien have accumulated more than century of experience. And they command ferocious forensic abilities — something which is absolutely crucial when dealing with complex documentation, submissions, and the fine detail of disputes
OUR TEAM at John Farage O’Brien commands a vast range of skills, from quantity surveying through project management and contract law to legal support and the arts of representation.
That range, of course, embraces all the key skills involved in preventing or resolving disputes, advising and representing clients, and managing a dispute as it develops, such as managing a continuous, constantly updated risk assessment matrix after a dispute begins.
It includes the crucial skills needed when in mediation, conciliation or other dispute resolution hearings, as well as those which are central to chairing or conducting such proceedings.
Apart from this complex of skills and the forensic abilities developed in the course of 15 years — more than 100 if you total the team’s experience — there is another dimension.
And that is: command of a strategic overview, an analytic standpoint that allows the firm to give advice to clients, or to approach the conduct of a hearing, which takes into account the entire picture within which a dispute is embedded.
Below, you can read John O’Brien’s take on that strategic dimension in dispute resolution, and an account of the extraordinary complexity of construction disputes.
The Strategic Dimension in Construction Disputes
The strategic or ‘political’ factor is one which we ignore at our peril. No dispute takes place outside a wider context made up of the culture of the business, trends in the sector and the economy, and existing relationships between the parties to a dispute, and to other parties
IN PRACTICE, THE STRATEGIC DIMENSION means that decisions on what is an acceptable solution in a dispute must take account of the wider context around a dispute, and of the implications for the future if a party insists on a ‘harder’ solution than is on offer, or may seem fair.
The old saying about “cutting off your nose to spite your face” is very apt here. If a claimant — or a respondent — ignores future implications, or the benefits of established relationships, in order to insist on his strict contractual rights, it may be that the losses in the long run will far outweigh any sense of victor’s satisfaction or the value of the — perhaps marginal — element which provided full victory.
Equally, being too ‘soft’ or too willing to accommodate the opposing party’s demands may have unintended consequences. The service provided by John Farage O’Brien includes strategic evaluation of all the elements in a dispute which could have longer term benefits or costs, and advising the client of these.
Of course, the final decision on whether or how to act on such considerations rests with the client’s senior management or directors. But in relation to strategy, the advice which John Farage O’Brien provides is based on 15 years of concentrated dispute resolution experience and an encyclopedic knowledge of the construction industry.
The Intricacy of Construction Contracts
After 15 years as a contract claims consultant and advocate, managing construction disputes for clients amounting to a total of €2.5 billion in project value, and acting as an arbitrator and conciliator, John FFF O’Brien reflects on what makes construction disputes complex to resolve
CONSTRUCTION DISPUTES by their nature tend to be quite complex to resolve because they are often quite difficult to understand. Their factual matrices generally cross over four separate areas of professional discipline often requiring a ‘committee’ of equals to assess the facts and merits of any given case.
It is extremely rare to have ADR practitioners and advisors that are fluent in knowledge and experience across each discipline and thus it is rare to find practitioners who are truly capable of applying the correct weighting to each which is crucial to reaching a holistic and balanced understanding of the matter before assessing the true risk for the party it advises.
At John Farage O’Brien, we group these disciplines into four main areas: technical, contractual, commercial, and legal. The fact that they generally include these four elements makes construction disputes complex to resolve — but we offer balanced advice across all four.
Each of these key constituent elements has a multiplicity of underlying sub-elements. These fields, and others, are detailed below:
The Technical Field
The technical field breaks down into two main areas of expertise, Design on the one hand and Construction on the other.
Elemental replacement and refurbishment
Building Information Modelling (BIM)
Investigating and analysing defects
Labour trades and specialist operatives
Excavation Plant Equipment
Cranes and Hoists
Logistics and Transportation
Planning and Programming
Project Management, Administration and Delivery
Buildability and Efficiencies (utilisation of resources)
Management of resources
Setting out and Supervision
Topographical and Land Surveying (operating manual and robotic total stations)
Equipment and small tools
Health and Safety
The legal field
There is a law for almost everything. In the construction industry, the most significant legal aspects embrace the following:
Knowledge of current and applicable case law (precedent and persuasive)
Knowledge of applicable case law evolution
Knowledge of breach of contract & remedies
Mediation and Conciliation (non-judicial processes)
Adjudication (judicial process)
Arbitration (judicial process)
Litigation (judicial process)
Managing the dispute (engaging experts, briefing lawyers, preparing witnesses draft pleadings, discovery, disclosure and hearings)
Knowledge of the Rules of the Superior Court
Contracts: a binding agreement
The contractual arrangements include setting out the powers, duties and obligations of the parties under the following agreements::
Main Contractor to Employer agreement
Main Contractor to Sub-contractor agreement
Designer to Employer agreement
Designer to Main Contractor agreement
Supply contract agreement
Standard forms of contracts
NEC, FIDIC, RIAI, GCCC, JCT (History of Contracts ICE 5th, IEI, GDLA)
Bespoke forms of contracts
Contra Proferentem and the dilution of implied terms in amended standard clauses
Condition precedents, time-barring and notice provisions
Custom and practice
Indemnity and collateral warranties
Landlord and tenant leases
Money: the commercial zone
The commercial field includes :
Quantity Surveying (PQS & Contractors QS)
Bill of Quantities
Standard Method of Measurement Rules
Schedules of Rates
Interim valuations and final accounts
Variations and Change Orders
Extensions of Time and Liquidated Damages
Negotiating final accounts and settlement agreements
Accountancy (statutory/company obligations)
Procurement – Private and Public
Life Cycle Costing
Finance and Banking
Fixed Price and inflation
SEO (Sectoral Employment Orders)
Cashflow projection and management
Head office management and administration
Economics – Macro and Micro – Viability of Construction Projects
Capital Expenditure, Revenue, Life cycle costing, elemental replacement (of a construction project)